Advertising Law Tool Kit - Tenth Edition | 2022

76 / Venable Telemarketing and Texting Daniel S. Blynn +1 202.344.4619 Ellen T. Berge +1 202.344.4704 Stephen R. Freeland +1 202.344.4837 Marketing by telephone and text message poses regulatory hurdles and private litigation risks that should be considered at the outset of any campaign. The Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and states enforce Do-Not-Call (DNC) laws and impose a number of other requirements regarding calling manner, disclosures, consent, calling hour limits, caller identification, state telemarketer registration, and other restrictions. Calls and texts made to cell phones using certain types of dialing technology (including autodialers) and prerecorded or artificial voice messages (a.k.a. robocalls) require particular attention, as much of the enforcement and litigation in this area involves texting and robocalling. Historically, private litigation and class action lawsuit demands have focused on FCC rules under the Telephone Consumer Protection Act (TCPA) that companies have “prior express written consent” before using an autodialer to call or text a cell phone for marketing purposes. In April 2021, the Supreme Court held that the definition of autodialer under the TCPA is narrower than previously interpreted. However, the lower courts are still grappling with the decision, and there is movement in Congress to re-broaden the definition. Furthermore, various states have adopted autodialer definitions under their own laws, which appear broader than the TCPA’s definition. For example, in July 2021, Florida amended its Telephone Solicitation Act (FTSA) to prohibit telemarketing calls and marketing text messages that “involve[ ]